Opposition Brief — Texas Water Conservation Ass'n v. Department of the Interior

"IT taroone Court’

FILED

@) i JUN 25 1992

No. 91-1927

No. 91-1929(2) OFFICE OF THE CLERK

In The

Supreme Court of the United States

October Term, i991

Sabine River Authority and

‘Texas Water Conservation Association

Petitioners

Vv.

United States Department of Interior, et al.

Respondents

On Petitions for Writs of Certiorari

To the United States Court of Appeals

For the Fifth Circuit

BRIEF OF RESPONDENT,

LITTLE SANDY HUNTING AND FISHING CLUB,

IN OPPOSITION

JOS. IRION WORSHAM

2001 Bryan Tower

Suite 3200

Dallas, TX 75201

(214)979-3000

Attorney for Respondent,

Little Sandy Hunting and Fishing Club

Counsel of Record

OE eest AMILABLE COPTE

No. 91-1927

No. 91-1929

In The

Supreme Court of the United States

October Term, 1991

Sabine River Authority and

Texas Water Conservation Association

Petitioners

Ve

United States Department of Interior, et al.

Respondents

On Petitions for Writs of Certiorari

To the United States Court of Appeals

For the Fifth Circuit

BRIEF OF RESPONDENT,

LITTLE SANDY HUNTING AND FISHING CLUB,

IN OPPOSITION

JOS. IRION WORSHAM

2001 Bryan Tower

Suite 3200

Dallas, TX 75201

(214)979-3000

Attorney for Respondent,

Little Sandy Hunting and Fishing Club

Counsel of Record

QUESTIONS PRESENTED

Whether federal action in accepting a

purely negative easement, which neither

causes nor permits any change in the

Physical environment, is a major action

Significantly affecting the quality of the

human environment, requiring the

preparation of an Environmental Impact

Statement.

Whether the FWS Preservation Program is a

Proposal for major federal action (rather

than a general guide for future activity)

of such a nature as to require an

Environmental Impact Statement.

PARTIES

Although not included in the "Parties in

the Court Below" section in the. Sabine River

Authority Petition, Little Sandy Hunting and

Fishing Club, correctly listed as an "Interested

Party" in the Texas Water Conservation

Association Petition, was a defendant in the

District Court, an appellee in the Court of

Appeals, and is a respondent here. It has

neither parent nor subsidiary.

» 44 «@

TABLE OF CONTENTS

Questions Presented ..........i

Pe? ss 6 ek ewe ek ek ee ee ee

sempae@ Of Comtents ...+s6eseese ii

Table of Authorities ......... iv

Statement of the Case .........21

Reasons for Denying the Petitions ... 4

ae ae ee ee

oh .

- 414 -

ee ee ee

ee

TABLE OF AUTHORITIES

Lujan v. Natural Wildlife Federation,

497 U.S. , 2420 S.Ct. 3177

(1990)

Metropolitan Edison Co. v. People

Against Nuclear Energy,

460 U.S. 766 (1983)

National Environmental Policy Act,

42 U.S.C. Sec. 4321 et seq.

2,3,6,8

passim

No. 91-1927

No. 91-1929

In The

Supreme Court of the United States

October Term, 1991

Sabine River Authority and

Texas Water Conservation Association

Petitioners

Vv.

United States Department of Interior, et al.

Respondents

On Petitions for Writs of Certiorari

To the United States Court of Appeals

For the Fifth Circuit

BRIEF OF RESPONDENT,

LITTLE SANDY HUNTING AND FISHING CLUB,

IN OPPOSITION

STATEMENT OF THE CASE

In 1986 Littie Sandy Hunting and Fishing

Club granted the United States of America a

perpetual non-development negative easement

BREE si Met eu

Fe

FP AOE AL 0 MP ste EN: OPE EU

covering 2800 acres in Wood County, Texas. The

only thrust cf the easement was to preserve the

land in the character then existing. It

restricted the fee owner by _ prohibiting

alteration of typography or vegetative cover,

drainage of wetlands, any development, ranching

or cattle operations, timber cutting or

harvesting and unnecessary roads, trails or

fences. It granted the Fish and Wildlife

Service no affirmative rights. All FWS can do

is come on the land and see that the

restrictions are observed and _ conservation

practices continued. There is no right granted

to "use" the land for any purpose. The

acceptance of the easement came after the

preparation of an Environmental Assessment and

the issuance of a Finding of No Significant

Impact.

Sabine River Authority was concerned that

its proposed Waters Bluff Reservoir, designed to

meet water needs in the year 2030, could not be

built, although at this stage there had been no

final decision to proceed, no license or permits

obtained, and no funds were available. It

nevertheless filed suit, contending that under

NEPA an EIS was required in connection with the

acceptance of the easement.

Texas Water Conservation Association was

allowed to intervene and raised a new issue not

introduced (but now adopted) by Sabine River

Authority, namely that FWS's Concept Plan,

pertaining to future acquisition of wildlife

refuge sites, was major federal action requiring

an EIS.

atl Shs 1 DAS BACT NES BTEC 2 RFA tela te AI ena rte

'

REASONS FOR DENYING THE PETITIONS

There is no express contention that there

is conflict between the decision below of the

Fifth Circuit and a decision of another United

States Court of Appeals, nor that the court

below has so far departed from the accepted and

usual course of judicial proceedings as to call

for an exercise of this Court's power of

supervision. .

Furthermore, the decision below is clearly

correct in that it tracks leading decisions of

this Court, namely:

1) t olit son v. People a Ss

Nuclear Energy, 460 U.S. 766 (1983), in holding

that federal action having no effect on the

physical environment requires no EIS; and

2) Lujan v. National Wildlife Federation,

497 U.S. -- 110 S. Ct. 3177, 111 L.Ed.2d 695

(1990), in holding that Bureau of § Land

Management's land withdrawal review program did

not require an EIS.

ARGUMENT’

.. THE ACCEPTANCE OF THE LITTLE SANDY

EASEMENT DID NOT REQUIRE THE PREPARATION

OF AN EIS

The question at the heart of this case is

whether the acceptance of the Little Sandy

easement was " . . . major Federal action

significantly affecting the quality of the human

environment... "

Aside from whether the action was "major"

or “significant," did it affect the human

environment? It gave FWS no affirmative rights

to do anything; it put serious restrictions on

Little Sandy. The FWS goal was to maintain

everything, as far as it possibly could, as it

existed -- change nothing.

Could such an easement "significantly

affect the quality of the human environment?"

That depends on what Congress meant by “human

‘Since both Petitions present the same

two issues, they will be addressed jointly

in this brief.

F|

:

3

environment." How expansive is that concept?

The Supreme Court in Metropolitan Edison v.

People Against Nuclear Energy, 460 U.S. 766,

came to grips with this question and gave a

clear answer. It said:

"If we were to seize the word

"environment" out of its context and

give it the broadest possible

definition, the words "adverse

environmental effects" might embrace

virtually any consequences of a

governmental action that someone

thought "adverse." But we think the

context of the statute shows that

Congress was talking about’ the

physical environment -- the world

around us, so to speak. NEPA was

designed to promote the human welfare

by alerting governmental actors to

the effect of their proposed actions

on the physical environment." 460

U.S. at p. 772.

and again:

"Thus, although NEPA states its goals

in sweeping terms of human health and

welfare, these goals are ends that

Congress has chosen to pursue by

means of protecting the physical

environment, 460 U.S. at p. 773,

(emphasis by the Court)."

So, does the acceptance of this easement,

that is designed to continue in perpetuity the

character of this land, within the framework of

/

|

:

the easement provisions, adversely affect the

physical environment? To ask the question is to

| answer it. So far as FWS is concerned, there

| will be no changes whatsoever in the

environment. The land and waters conserved by

the easement will continue, peaceful, serene,

and undisturbed, as they have for decades. Even

as to the fee owner, Little Sandy, there are

serious restrictions on what it can do that

might alter the condition or use of the land.

And there is no change of any nature because

none of the prohibited uses is going on now. In

no way does the granting of the easement

produce, cause, or result in a change or

invasion of the environment. Literally, nothing

happens or comes to pass as a consequence of the

easement. The threshold requirement of a

. primary impact on the physical environment is

missing.

The Authority and Texas Water Conservation

Association (TWCA) have recognized, as they

must, that an adverse effect upon the physical

environment is necessary to generate a

requirement for an EIS, but they immediately

shift the talk to human environment and decry

the consequences that will ensue if a scarcity

of water develops (meaning Waters Bluff is not

huilt) and the economy and the people suffer

from the scarcity of water.

But how is not building a reservoir an

adverse effect upon the physical environment?

It may be something else -- it may have other

consequences, but it is not a physical change in

the environment.

There is no doubt as to what Congress had

in mind. Two principal sponsors of NEPA

explained:

"What is involved fin NEPA} is a

congressional declaration that we do not

intend, as a government or as a people, to

initiate actions which endanger’ the

continued existence or the health of

wae that j

whj do irre ble

damage oo the air, land and water which

support life on earth." 115 Cong Rec 40416

(remarks of Sen. Jackson) (emphasis

supplied).

ee

a RR a

"(Wje can now move _ forward to

preserve _and enhance _our _air,

e stri viro s

- « »« to carry out the policies and

goals set forth in the bill to

provide each citizen of this great

country a healthful environment."

Id. at 40924 (remarks of Rep.

Dingell) (emphasis supplied).

". . . irreparable damage to air, land, and

water..." How is the air -- or the land --

or water -- damaged by the acceptance of the

easement?

Petitioners recognize that they must deal

with Metropolitan Edison and manfully attempt to

do so, but they constantly encounter the problem

of identifying the change in physical

environment, resulting from federal action, that

is necessary. No matter how they twist and

turn, they cannot avoid the fact that Congress,

in enacting NEPA, chose to protect the human

environment by monitoring the effects of changes

in the physical environment.

What Petitioners seek is a different

statute -- an enhanced NEPA -- a statute that

Congress could have enacted but did not -- a

J ent Siac

statute that says that any federal action that

may have an effect on the human environment

(even though no effect on the _ physical

environment) requires an EIS.

Petitioners say the courts below preferred

"preservation actions" to water supply. These

courts did nothing of the sort. They merely

followed the clear decision of this Court -- to

involve NEPA, federal action must change or lead

to a change in the physical environment.

It is a one-two-three analysis -- First, a

federal action that, secondly, changes the

physical environment, producing, thirdly, an

effect on the human environment that should be

evaluated.

Here the second criterion is missing.

There is simply no effect on the physical

environment from the acceptance of the easement.

It is this second essential that

Petitioners ignore or glide over.

To give just one example -- the Authority

Says in its Petition (page 11):

ee ce ee ee

© een nt Rll

"The ruling below wholly excludes

from NEPA, preservation actions which

themselves cause no immediate changes

in the physical environment. This is

so, even where such actions preclude

human intervention necessary to

protect other important environmental

interests -- such as, in this case, a

plentiful clean water supply for

human consumption."

The Authority sets forth the § first

criterion -- federal action, jumps over the "no

change" requirement, and emphasizes the adverse

effect on human health and welfare.

Suppose, for instance, that FWS had owned

the land in question, in fee simple, from time

immemorial, and the Authority sought to buy the

land to build Waters Bluff/Reservoir. Would FWS

have to prepare an EIS in order to decline to

sell? Obviously not, yet such action would have

all the dire consequences that the Petitioners

say will result from acteptance of the easement.

On the other hand, if FWS decided to sell to

allow the building of the lake, it probably

would have to prepare an EIS, to evaluate the

consequences. One of the judges commented on

this point in the course of the Argument before

- ll -

the Fifth Circuit panel and the Court in its

opinion stated:

"Of course, when the government

conveys property to, or exchanges

land with, a private party that plans

to develop the land, an EIS is

necessary because the conveyance of

property is precipitating a change in

the physical complexion of the land."

(SRA Appendix A, p.21la) (emphasis by

the Court).

The Authority attempts to support its.-

position by invoking the "risk" section in

Metropolitan Edison. It points to’ the

situations where leases, licenses, etc. from the

federal government become subject to NEPA

because they create a "risk" that subsequent

action may damage the physical environment.

Exactly so. Such licenses, etc. lead to

constructing dams, building airports, dredging

wetlands, etc. The one-two-three- step is

satisfied: federal action -- environmental

change -- damage to air, land, or water (the

human environment). That can never happen in

"risk" of

There can be no

the instant case.

We ay

later action affecting adversely the environment

because the easement permits no action.

In deciding this case, the District Court

went into an extensive review of the record

which had been compiled in this case. The Fifth

Circuit on appeal, because the case had been

decided on summary judgment motions, reviewed

the record (SRA Appendix A, pp. 18a-19a) and

affirmed. Now Petitioners, presenting an

Appendix D of 154 pages of affidavits,

interrogatory excerpts and letters ask this

Court to conduct a third review of factual

matter. We urge the Court to decline this

request.

II. THE FWS PRESERVATION PROGRAM DOES NOT RISE

TO THE STATURE OF MAJOR FEDERAL ACTION

REQUIRING AN EIS

The record in this respect is very

extensive and complex. Petitioners point to

certain circumstances as indicating the

development of plans, analysis of alternatives,

and establishment of goals to such a degree as

to culminate in a proposal for action that would

require NEPA review. They ignore the fact the

Plan was a preliminary study, which refused to

specify sites to acquire, and left open a wide

avenue of approaches to accomplish its goal of

preserving bottomland habitat. It refers to the

infancy of the program and the future

preparation of a detailed preservation plan.-

Furthermore, the very nature of the Program

assumes that acquisition of conservation

easements and titles will not lead to changes in

the environment and thus involve NEPA. TWCA in

its brief (p. 19) refers to the Program as

", . . a program of Federal acquisition for

) perpetual nondevelopment of water resource areas

. ." (emphasis supplied).

Finally, we deal here with a situation

where the district judge has carefully reviewed

the extensive record and concluded that ".

the Court finds the Preservation Program is not

a ‘proposal' for major federal action under

NEPA." (SRA Appendix A, p. 50a).

The Court of Appeals has affirmed, saying:

6 aS.

withthe. miatty, 3

"the district court correctly

dismissed the claims brought by the

Sabine River Authority and the Texas

Water Conservation Association and we

are hard-pressed to improve upon its

scholarly work." (SRA Appendix A, p.

3a).

The holding below on the factual analysis

of the situation brings us within the ambit of

this Court's recent opinion in Lujan v. National

Wildlife Federation, 497 U.S. - There the

question was whether a land withdrawal review

program was “agency action" within the meaning

of the Act. The court said (111 L.Ed.2d at p.

agp?

"It is impossible that the affidavits

would suffice, as the Court of

Appeals held, to enable respondent to

challenge the entirety of

petitioners' so-called "land

withdrawal review program." This is

not an “agency action" within the

meaning of §702, much less a "final

agency action" within the meaning of

§704. The term "land withdrawal

review program" (which as far as we

know is not derived from. any

authoritative text) does not refer to

a single BLM order or regulation, or

even to a completed universe of

particular BLM orders and

regulations. It is simply the name

by which petitioners have

occasionally referred to the

continuing (and thus constantly

- 15 -

changing) operations of the BLM in

reviewing withdrawal. revocation

applications and the classifications

of public lands and developing land

use plans as required by the FLPMA.

It is no more an identifiable "agency

action" -- much less a "final agency

action" -- than a "weapons

procurement program" of the

Department of Defense or a “drug

interdiction program" of the Drug

Enforcement Administration. As the

District Court explained, the “land

withdrawal review program" extends

to, currently at least, "1250 or so

individual classification

terminations and withdrawal

revocations. 699 F.Supp., at 332."

In brief, the Program is not ripe for NEPA-

EIS consideration. Again, we urge the Court to

decline the opportunity to examine a factually

complex record, already fully reviewed below.

- 16 -

1 PR ern

ROSE OR ented cate

i er ee

Walaa aia Se Sy gh 2:

CONCLUSION

For the reasons stated, we urge denial of

the Petitions.

Respectfully submitted,

JOS. IRION WORSHAM

2001 Bryan Tower

Suite 3200

Dallas, TX 75201

(214)979-3000

Attorney for Respondent,

Little Sandy Hurting

and Fishing Club

Counsel of Record

-i17 -